“Henri’s lack of motive might sway the Supreme Court.” – ANALYST

Throughout the Oscar Pistorius case, Cape Town’s Kelly Phelps, a senior lecturer on criminal law at the University of Cape Town’s department of public law [and thus a legal expert] often provided expert counsel to the clueless mainstream media. Below are just a handful of Phelps’ contributions to the media narrative.

Experts differ on Oscar Verdict – on September 11 2014, when Judge Masipa found Oscar guilty of culpable homicide [a verdict ultimately overturned by the Supreme Court of Appeal to murder] Kelly Phelps told the media:

“I support her finding and her reasoning… Culpable homicide was always a likely outcome in this case,” she said.

There’s a lot more where this comes from. I remember Phelps very well during my coverage of the Pistorius case between 2014 and 2017. I remember not agreeing with virtually every criminal law assessment she made. Ulrich Roux, on the other hand, I remember made fairly astute calls and sensible commentary during the first third of the trial narrative, but his handle on the case got a little more wobbly from there onwards, I thought.

In order to comment on a court case with true insight requires more than a passing knowledge of a trial, and a lot better source of information than coverage by the mainstream media. To pick the nuances you really have to be there, or failing that, study everything that’s out there. Most of these experts simply don’t have the time for that, so it’s no wonder their assessments are glances and glimpses, and of dubious worth otherwise, especially when there are long court narratives. The Van Breda case has been pending for the past three years and counting. That’s a lot of intrigue to have to catch up on at short notice.

When Phelps cast her pearls to the media during the Pistorius case, which was a five year trial narrative from beginning to final conclusion, I wondered whether it was just bad luck, or whether one of us was consistently critically misinformed about the case.

You can say what you want, in spite of Phelps’ prognostications from the get-go, let the records show, the most authoritative courts in the country have consistently found otherwise, contrary to her expert academic counsel to the media regarding Pistorius.

Now, with Henri van Breda, she appears to be doing to same thing.

Over the weekend, Cape Town’s Weekend Argus quoted the criminal law lecturer [whom they describe as a legal analyst on the Oscar Pistorius trial for CNN] saying:

“I’m convinced after reading the defence’s papers that they stand a decent chance of getting a Supreme Court hearing…it’s not unthinkable the Supreme Court could be swayed into acquitting him. [The state’s]argument is strong, but the defence’s is equally so. This case is not as open and shut as the public have been led to believe.”

This whopper from Phelps makes me wonder how much time she has spent following this case, between her duties as a university lecturer. If I had to score the state’s case against the defence case I’d say it was a 9-1 whitewash. Botha only gave the appearance of fielding a defence, in my view.

In the Pistorius trial, we saw similar legal sleight of hand. Oscar really had no defence, but Barry Roux managed to convince a few, at least for a while, that he did, or at least that there was some doubt to consider. I’d score the Pistorius defence’s case slightly better, at 8-2.

The only point for the defence in the Van Breda trial was that Henri presented a version in court, which was better [barely] than presenting no version. I agree with what Desai said during the application for leave to appeal hearing, rarely do you come across a case as open and shut as this one. It goes without saying that Henri was a very unconvincing witness on the stand, among a host of other problems which I’m not going to go into here.

[Phelps] said to understand the complexity of the trial, it was important to grasp the distinction between circumstantial and direct evidence. “Direct evidence supports the truth of a claim directly. For example, if a witness saw an accused shoot and kill the deceased, this testimony is direct evidence of the guilt of the accused. After reading the defence’s appeal application it’s clear that another reasonable inference may be able to be drawn. And if the Supreme Court is persuaded then Henri van Breda will walk free.”

It sounds like the same sort of drivel about Oscar, doesn’t it? There are very few high-profile criminal cases where someone actually sees someone else commit a crime. Direct evidence cases basically negate the need to even have a trial. Something that’s self-evident typically doesn’t need to be tested in court, just look at the CCTV footage. Case closed.

A good example, said Phelps, is the way the defence challenged the State’s persuasive argument that De Zalze’s security was not penetrated. “Van Breda’s lawyers refer to unrefuted testimony that real alarms went off on the night in question, which were never explained by the State. Furthermore, they point out that the majority of the fence was not covered by cameras and there were in fact 191 prior incidents of crime reported to the police. This clearly shows that the security is not impenetrable.”

If you sat through the court testimony, and you were properly appraised of the DeZalze estate – it’s size, it’s extent, the mapping, the location of #12 Goske Street in the fabric of the estate, the various security layers etc – then you’d know the perimeter security isn’t a good legal argument in this case. You’d also know the alarms that went off sound like a promising defence but they’re not; they’re just false alarms picked up the perimeter sensors that are typical at estates of similar size.

Phelps said while the State’s case was compelling enough to secure a conviction, it nevertheless provided no motive as it is not a legal requirement in South African law. “However, motive is an important persuasive tool as it adds plausibility to the State’s case. So why did Van Breda just decide out of the blue one morning to axe his family to death? It beggars belief it’s deeply implausible. “The State provides a compelling narrative but no context to drive it. They did not put forward a shred of evidence to explain why Henri would have murdered almost his entire family. Ultimately, the lack of motive might sway the Supreme Court.”

On paper, this also sounds like a brilliant legal argument, and certainly the court and the media all scratched their heads post conviction. It was as if for the first time people wondered – shit, if he did it, why would he? And then a few people pontificated about a boy being wounded by his dad, as if that’s never happened in every other family in the world that’s ever raised teenage boys or male siblings.

Once again, Phelps is making the same mistake she made with Oscar Pistorius. There the state, the court and the media all failed to address motive as well, and yet ultimately, Oscar was found guilty of murder and sentenced to the appropriate sentence.

In South African criminal law, all you have to prove is intention, also known as Dolus. In the Van Breda case the state went even further, proving premeditated murder.

The Van Breda case has far more intentionality than the Pistorius case, because Van Breda puts himself at the scene in his own version, and because he’s there when four people are slaughtered at arm’s length from where he’s standing like a statue. He’s right there as his brother and father are being hacked multiple times – he’s standing right there in the same room. Murdering someone with an axe takes time. Each blow takes a moment to lift and smash, and then there’s another blow, and the victim may move and perpetrator must change position to land the blow where it will inflict the most damage. Killing one person with an axe takes time, even after you’ve landed your blows. Imagine how long killing four people, one after another, takes? Imagine how tiring it is.

And by his own admission, Henri does nothing while the one family member is attacked, then the other, then the other and does nothing for several hours afterwards when he has the house to himself, to help any of his family members even though he has minimal injuries, and he’s well aware that they are seriously injured and still alive.

The fact that Marli survived in spite of her injuries, and despite her brother’s callous lack of compassion, indicates there was something that could have been done, there were lives that could have been saved.

Yet Henri can also offer no explanation for why he didn’t come to the aid of any of his four slain family members, and yet he came to his own aid. According to his version, he fought off the attacker with ease, but only when the phantom confronted him. In this sense there is a clear intention to fight for his own survival, but then not to assist his family whose suffering persists for hours on end, and for many more minutes during his ridiculous phone call in which he expresses a deplorable lack of urgency given the circumstances.

Van Breda’s 20-something emergency phone call is another huge piece of evidence which we didn’t have in the Oscar Pistorius case.

In my view – and I don’t think this is legal rocket science by any means – Judge Desai will not grant an appeal, neither will the Supreme Court of Appeal and neither will the Constitutional Court.

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